E-mail messages: Does the public have a Right-to-Know?
April 30, 2009 New RTK Law | Email
Editor's note: Guy Beneventano, an attorney with the Harrisburg firm of Nauman, Smith, Shissler & Hall, is solicitor for Dauphin County, Latimore Township, and the Middle Paxton Township Zoning Hearing Board. He has prepared Right to Know policies for several local agencies under the new law.
The following article was first published in "The Authority," the magazine of the Pennsylvania Municipal Authorites Association, and is reprinted here with permission.
By Guy P. Beneventano
Nauman, Smith, Shissler & Hall, LLP
Sending and receiving e-mail is more and more an indispensable part of everyday life. We message each other from personal computers (both home and office), BlackBerries and iPhones. The array of technology is amazing and constantly changing.
Of the daily e-mail messages sent and received, the substance usually varies. Sometimes it’s strictly business; sometimes it’s strictly personal. Frequently it’s a mix.
For employees and officials of municipal authorities, are e-mail messages open for public inspection? Does the public, for example, have a right to see a text message sent from a board chair to the authority’s executive director, or vice versa? In many (if not most) cases, the answer is a qualified yes. Moreover, surprising as it may seem, many text messages must be kept (in some form) for years as official public records of the municipal authority.
This article discusses the kinds of e-mail messages that the public has a right to inspect. I also emphasize the duty each municipal authority has to preserve certain e-mails while promptly deleting others. Authority employees and officials alike must always keep in mind that e-mail messages are not personal letters. What you say today in an unguarded moment may well be part of the story line you read about in tomorrow’s newspaper.
New Right-to-Know Law
Pennsylvania’s new Right-to-Know law stands to change the way many municipal authorities do business, including the way e-mail messages are handled. As a general rule, all records – documents, papers, letters, information maintained electronically, etc. – are now legally presumed to be public records. This broad presumption does not simply apply to all new records; it covers every record (including e-mail messages) created, received or retained as of January 1, 2009 – the date the legal presumption took effect under the new Right-to-Know Law.
Therefore, when thinking about e-mail messages sent and received at your municipal authority, you should start with the understanding that the message is an official public record if it is sent or received in the ordinary course of a municipal authority’s business. The legal presumption under Right-to-Know only gives way if the message fits one of three categories of exemptions; that is, the e-mail message is presumed to be a public record unless it:
Many of your authority’s e-mail messages are probably “public” under these standards. Are you keeping these records? Are you automatically deleting these records? Does your municipal authority have a policy discussing e-mail use?
Saving and Purging Public Records
Just about every municipal authority creates and accumulates a lot of documents, both paper and electronic. These documents are presumed to be public records, and you cannot simply discard them at random.
Does this mean a municipal authority must now keep everything, including all e-mail messages? No. Saving everything is tantamount to finding nothing, a notion the Right-to-Know law embraces.
In Section 507 of the new law you will find this specific provision:
Nothing in this act shall be construed to modify, rescind or supercede any record retention policy or disposition schedule of any agency established pursuant to law, regulation, policy or other directive. (Emphasis added.) 65 P.S. § 67.507.
In other words, to be legal, the purging must be done carefully and methodically, under official guidelines, so that a municipal authority keeps what needs to be kept and disregards the rest. Wholesale or helter-skelter destruction of documents (electronic or otherwise) is not what the law has in mind.
So, what do you save and what do you pitch? In particular, which e-mail messages must be kept for either “historical” purposes or in response to a Right-to-Know request? For municipal authorities, clear guidance comes from the state Museum Commission under a somewhat obscure state law known as the Municipal Records Act.
Municipal Records Act and Manual
The Municipal Records Act, a 1996 state law, established the Local Government Records Committee (“Committee”) under the aegis of the Pennsylvania Historical and Museum Commission. The Committee is authorized to issue schedules and regulations for the disposition of all public records “made or received by [a municipal authority] in connection with the exercise of its powers and the discharge of it duties.” 53 Pa. C.S.A. §§ 1382 and 1385.
For the past several years, the Committee has approved municipal records manuals establishing detailed disposition schedules for a host of public records. In large part, these schedules have given straightforward instructions to any municipal authority wishing to properly maintain public records. Until recently, e-mail communications was the one area sorely in need of clarification. That clarification has now been provided.
On December 16, 2008, the Committee approved a new Municipal Records Manual (“Manual”) which, among other matters, establishes policy and detailed guidelines for the management of electronic records, including e-mail messages. The stated purpose of the policy and guidelines is to “[e]stablish and clarify . . . records management . . . with respect to the creation, use, maintenance, scheduling and disposition of electronic records including those created on e-mail systems.” (Emphasis added; E-mail Policy at Paragraph 1.) I highly recommend that all municipal authority solicitors and executive directors spend some time familiarizing themselves with its contents.
One of the specific objectives of the Committee’s new e-mail policy is “[t]o ensure the accessibility of electronic records in conformance with the schedules approved by the . . . Committee.” (Emphasis added; E-mail Policy at Paragraph 2.3.) Therefore, as a priority, municipal authorities should review the various disposition schedules approved by the Committee, and that review should be undertaken with the clear understanding that (i) the schedules cover “electronic records,” and (ii) electronic records include e-mail messages.
The Manual itself defines e-mail messages as “documents that are created, stored and delivered in an electronic format.” (E-mail Policy at Paragraph 4.) This broad definition specifically includes “features commonly associated with traditional records systems, including calendars, directories, distribution lists, and attachments such as word processing documents, spreadsheets, or images that are incorporated into an e-mail message.” (Id.)
As a result, when determining whether an e-mail message is a public record under Right-to-Know, you cannot simply parse the message by breaking-up into component parts the attachments, lists, etc., releasing what you want and withholding what you choose. If the e-mail message is “made or received . . . in connection with the exercise of [a municipal authority’s] powers and the discharge of its duties[,]” then, the text and all components are public records under the Municipal Records Act, and thus potentially subject to public access under the new Right-to-Know law. Moreover, these messages and attachments must be retained and disposed of according to the Committee’s various retention schedules.
Retention Schedules
As authorized by the Municipal Records Act, the Committee has approved detailed schedules for the disposition of public records, including e-mail messages. The records retention and disposition schedules - grouped into sixteen separate categories - cover a wide array of public records made or received by a municipal authority in the exercise of its powers and the discharge of its duties. Within each category, specific types of public records are presented and each one is allotted a precise retention and disposition schedule. For example, the Manual addresses financial and purchasing records, payroll records, and personnel records. Therein, you will find specific retention periods for documents such as annual budgets, cancelled payroll checks, and employee personnel records.
On the matter of financial records, mention must be made that these records are the broadest category of public records defined under the new Right-to-Know law. The thirty statutory exemptions spelled out in the new law (see note 1, supra) do not even apply to financial records, “except that an agency [e.g., a municipal authority] may redact [certain] portion[s] of a financial record [otherwise] protected . . .” 65 P.S. § 67.708(c). Therefore, you should carefully examine the financial records section of the Manual to make certain that your municipal authority is keeping everything required to be kept.
There’s a good chance that at some point you’ll receive a Right-to-Know request for such records.
For purposes of e-mail review, a close examination must be made of the detailed section on administrative and legal records. There, the careful reader will note that a municipal authority must permanently retain “records that summarize the origin and administration of major municipal policies and programs.” (Manual at AL-1.) This requirement includes e-mail messages.
Therefore, if much of the interaction between board members and staff at your municipal authority takes place via e-mail, you should give serious thought to just how much of it constitutes either the “origination” or “administration” of major policies or programs. Under the Committee’s approved schedules, all such e-mails must be permanently retained in some form as historical records of the authority.
As for “routine correspondence and program files, and housekeeping records,” these documents need only be “retain[ed] as long as of administrative value.” (Manual at AL-1.) Many e-mail messages will fall into this category. As such, each message should be deleted once it loses administrative value.
Also, the new Right-to-Know law exempts from public access those “notes and working papers prepared by or for a public official or agency employee [and] used solely for that official’s or employee’s own personal use.” 65 P.S. § 67.708(b)(12). Such documents “includ[e] telephone message slips, routing slips and other materials that do not have an official purpose.” Id. Many of these kind of records might be stored or maintained electronically. Thus, the official or employee in question should feel free to delete the record once it loses value.
What about those e-mails sent and received during the work day that are truly personal (e.g., the message from a spouse about dinner, or the one about weekend plans from a son or daughter at college)? Must these be kept? No. According to the Committee, any e-mail message that does not meet the definition of a public record need not be kept. In fact, such messages should be promptly destroyed. As the Manual itself takes pains to point out: “E-mail messages and attachments that do not meet the definition of records and are not subject to litigation and other legal proceedings should be deleted immediately after they are read.”(Emphasis added; E-mail Policy at section 5.87.) In other words, you actually have a duty to “immediately” delete such e-mails, presumably so that they don’t clutter the messages that must be saved as public records.
What do you do with the e-mails you must keep? Must they all be kept in your in-box? No, that would be burdensome. The Manual provides as follows:
Records may be deleted from an e-mail system if their required retention has expired or after they have been copied to a records keeping system. (E-mail Policy at par. 5.9.)
As for the municipal authorities that lack “the technical capability to manage e-mail messages for the full retention period in an electronic format,” they are allowed to create “an analog copy (paper or microfilm).” (E-mail Policy at par. 6.3.)
“Private” E-mail Communications
What about so-called “private” e-mail communications between municipal authority board members (e.g., messages sent from or received at home computers or hand-held devices). Are these communications public records under the new Right-to-Know law? In a word, yes.
Recently, in the case of Mollick v. Worcester Township, the Pennsylvania Office of Open Records (“OOR”) issued a very important final determination on e-mail communications between township supervisors. It potentially exposes to public review all e-mails on government matters between elected or appointed officials, regardless of whether the message is sent from or received at a home computer, or otherwise “copied” to the solicitor. Mollick will be discussed in detail in a follow-up piece to this article. For now, recognize that Mollick significantly expands the scope of Right-to-Know for the following three reasons:
Conclusion
As part of the Right-to-Know planning process, I recommend that every municipal authority adopt specific policies concerning the use of e-mail messages. This will help minimize the personal use of the office computer, and it will also serve to remind employees and board members that e-mail communications are not necessarily private.
As we’ve discussed, certain (but not all) public records can be lawfully thrown away or destroyed, provided the purging is done pursuant to an official document destruction policy. Regardless of the purpose of your particular municipal authority, all such document destruction policies should be firmly based on the Municipal Records Act, and all such policies must address e-mail messages. For those municipal authorities that have not yet done so, I strongly recommend the adoption of an official document destruction policy (e-mail included) to facilitate the preservation of those records that must be maintained.
In the next issue of The Authority, I will offer tips on developing and implementing a meaningful records retention program. In the meantime, review the Committee’s new Manual with an eye to identifying any weaknesses in your current e-mail system. Otherwise, under Right-to-Know, you might find yourself responding to requests for e-mail communications, the number of and nature of which threatens to be both burdensome and embarrassing.
The following article was first published in "The Authority," the magazine of the Pennsylvania Municipal Authorites Association, and is reprinted here with permission.
By Guy P. Beneventano
Nauman, Smith, Shissler & Hall, LLP
Sending and receiving e-mail is more and more an indispensable part of everyday life. We message each other from personal computers (both home and office), BlackBerries and iPhones. The array of technology is amazing and constantly changing.
Of the daily e-mail messages sent and received, the substance usually varies. Sometimes it’s strictly business; sometimes it’s strictly personal. Frequently it’s a mix.
For employees and officials of municipal authorities, are e-mail messages open for public inspection? Does the public, for example, have a right to see a text message sent from a board chair to the authority’s executive director, or vice versa? In many (if not most) cases, the answer is a qualified yes. Moreover, surprising as it may seem, many text messages must be kept (in some form) for years as official public records of the municipal authority.
This article discusses the kinds of e-mail messages that the public has a right to inspect. I also emphasize the duty each municipal authority has to preserve certain e-mails while promptly deleting others. Authority employees and officials alike must always keep in mind that e-mail messages are not personal letters. What you say today in an unguarded moment may well be part of the story line you read about in tomorrow’s newspaper.
New Right-to-Know Law
Pennsylvania’s new Right-to-Know law stands to change the way many municipal authorities do business, including the way e-mail messages are handled. As a general rule, all records – documents, papers, letters, information maintained electronically, etc. – are now legally presumed to be public records. This broad presumption does not simply apply to all new records; it covers every record (including e-mail messages) created, received or retained as of January 1, 2009 – the date the legal presumption took effect under the new Right-to-Know Law.
Therefore, when thinking about e-mail messages sent and received at your municipal authority, you should start with the understanding that the message is an official public record if it is sent or received in the ordinary course of a municipal authority’s business. The legal presumption under Right-to-Know only gives way if the message fits one of three categories of exemptions; that is, the e-mail message is presumed to be a public record unless it:
- fits one of thirty statutory exceptions;
- is protected by a legal privilege; or
- is otherwise exempt from disclosure under some other law (federal or state), regulation or court order.
Many of your authority’s e-mail messages are probably “public” under these standards. Are you keeping these records? Are you automatically deleting these records? Does your municipal authority have a policy discussing e-mail use?
Saving and Purging Public Records
Just about every municipal authority creates and accumulates a lot of documents, both paper and electronic. These documents are presumed to be public records, and you cannot simply discard them at random.
Does this mean a municipal authority must now keep everything, including all e-mail messages? No. Saving everything is tantamount to finding nothing, a notion the Right-to-Know law embraces.
In Section 507 of the new law you will find this specific provision:
Nothing in this act shall be construed to modify, rescind or supercede any record retention policy or disposition schedule of any agency established pursuant to law, regulation, policy or other directive. (Emphasis added.) 65 P.S. § 67.507.
In other words, to be legal, the purging must be done carefully and methodically, under official guidelines, so that a municipal authority keeps what needs to be kept and disregards the rest. Wholesale or helter-skelter destruction of documents (electronic or otherwise) is not what the law has in mind.
So, what do you save and what do you pitch? In particular, which e-mail messages must be kept for either “historical” purposes or in response to a Right-to-Know request? For municipal authorities, clear guidance comes from the state Museum Commission under a somewhat obscure state law known as the Municipal Records Act.
Municipal Records Act and Manual
The Municipal Records Act, a 1996 state law, established the Local Government Records Committee (“Committee”) under the aegis of the Pennsylvania Historical and Museum Commission. The Committee is authorized to issue schedules and regulations for the disposition of all public records “made or received by [a municipal authority] in connection with the exercise of its powers and the discharge of it duties.” 53 Pa. C.S.A. §§ 1382 and 1385.
For the past several years, the Committee has approved municipal records manuals establishing detailed disposition schedules for a host of public records. In large part, these schedules have given straightforward instructions to any municipal authority wishing to properly maintain public records. Until recently, e-mail communications was the one area sorely in need of clarification. That clarification has now been provided.
On December 16, 2008, the Committee approved a new Municipal Records Manual (“Manual”) which, among other matters, establishes policy and detailed guidelines for the management of electronic records, including e-mail messages. The stated purpose of the policy and guidelines is to “[e]stablish and clarify . . . records management . . . with respect to the creation, use, maintenance, scheduling and disposition of electronic records including those created on e-mail systems.” (Emphasis added; E-mail Policy at Paragraph 1.) I highly recommend that all municipal authority solicitors and executive directors spend some time familiarizing themselves with its contents.
One of the specific objectives of the Committee’s new e-mail policy is “[t]o ensure the accessibility of electronic records in conformance with the schedules approved by the . . . Committee.” (Emphasis added; E-mail Policy at Paragraph 2.3.) Therefore, as a priority, municipal authorities should review the various disposition schedules approved by the Committee, and that review should be undertaken with the clear understanding that (i) the schedules cover “electronic records,” and (ii) electronic records include e-mail messages.
The Manual itself defines e-mail messages as “documents that are created, stored and delivered in an electronic format.” (E-mail Policy at Paragraph 4.) This broad definition specifically includes “features commonly associated with traditional records systems, including calendars, directories, distribution lists, and attachments such as word processing documents, spreadsheets, or images that are incorporated into an e-mail message.” (Id.)
As a result, when determining whether an e-mail message is a public record under Right-to-Know, you cannot simply parse the message by breaking-up into component parts the attachments, lists, etc., releasing what you want and withholding what you choose. If the e-mail message is “made or received . . . in connection with the exercise of [a municipal authority’s] powers and the discharge of its duties[,]” then, the text and all components are public records under the Municipal Records Act, and thus potentially subject to public access under the new Right-to-Know law. Moreover, these messages and attachments must be retained and disposed of according to the Committee’s various retention schedules.
Retention Schedules
As authorized by the Municipal Records Act, the Committee has approved detailed schedules for the disposition of public records, including e-mail messages. The records retention and disposition schedules - grouped into sixteen separate categories - cover a wide array of public records made or received by a municipal authority in the exercise of its powers and the discharge of its duties. Within each category, specific types of public records are presented and each one is allotted a precise retention and disposition schedule. For example, the Manual addresses financial and purchasing records, payroll records, and personnel records. Therein, you will find specific retention periods for documents such as annual budgets, cancelled payroll checks, and employee personnel records.
On the matter of financial records, mention must be made that these records are the broadest category of public records defined under the new Right-to-Know law. The thirty statutory exemptions spelled out in the new law (see note 1, supra) do not even apply to financial records, “except that an agency [e.g., a municipal authority] may redact [certain] portion[s] of a financial record [otherwise] protected . . .” 65 P.S. § 67.708(c). Therefore, you should carefully examine the financial records section of the Manual to make certain that your municipal authority is keeping everything required to be kept.
There’s a good chance that at some point you’ll receive a Right-to-Know request for such records.
For purposes of e-mail review, a close examination must be made of the detailed section on administrative and legal records. There, the careful reader will note that a municipal authority must permanently retain “records that summarize the origin and administration of major municipal policies and programs.” (Manual at AL-1.) This requirement includes e-mail messages.
Therefore, if much of the interaction between board members and staff at your municipal authority takes place via e-mail, you should give serious thought to just how much of it constitutes either the “origination” or “administration” of major policies or programs. Under the Committee’s approved schedules, all such e-mails must be permanently retained in some form as historical records of the authority.
As for “routine correspondence and program files, and housekeeping records,” these documents need only be “retain[ed] as long as of administrative value.” (Manual at AL-1.) Many e-mail messages will fall into this category. As such, each message should be deleted once it loses administrative value.
Also, the new Right-to-Know law exempts from public access those “notes and working papers prepared by or for a public official or agency employee [and] used solely for that official’s or employee’s own personal use.” 65 P.S. § 67.708(b)(12). Such documents “includ[e] telephone message slips, routing slips and other materials that do not have an official purpose.” Id. Many of these kind of records might be stored or maintained electronically. Thus, the official or employee in question should feel free to delete the record once it loses value.
What about those e-mails sent and received during the work day that are truly personal (e.g., the message from a spouse about dinner, or the one about weekend plans from a son or daughter at college)? Must these be kept? No. According to the Committee, any e-mail message that does not meet the definition of a public record need not be kept. In fact, such messages should be promptly destroyed. As the Manual itself takes pains to point out: “E-mail messages and attachments that do not meet the definition of records and are not subject to litigation and other legal proceedings should be deleted immediately after they are read.”(Emphasis added; E-mail Policy at section 5.87.) In other words, you actually have a duty to “immediately” delete such e-mails, presumably so that they don’t clutter the messages that must be saved as public records.
What do you do with the e-mails you must keep? Must they all be kept in your in-box? No, that would be burdensome. The Manual provides as follows:
Records may be deleted from an e-mail system if their required retention has expired or after they have been copied to a records keeping system. (E-mail Policy at par. 5.9.)
As for the municipal authorities that lack “the technical capability to manage e-mail messages for the full retention period in an electronic format,” they are allowed to create “an analog copy (paper or microfilm).” (E-mail Policy at par. 6.3.)
“Private” E-mail Communications
What about so-called “private” e-mail communications between municipal authority board members (e.g., messages sent from or received at home computers or hand-held devices). Are these communications public records under the new Right-to-Know law? In a word, yes.
Recently, in the case of Mollick v. Worcester Township, the Pennsylvania Office of Open Records (“OOR”) issued a very important final determination on e-mail communications between township supervisors. It potentially exposes to public review all e-mails on government matters between elected or appointed officials, regardless of whether the message is sent from or received at a home computer, or otherwise “copied” to the solicitor. Mollick will be discussed in detail in a follow-up piece to this article. For now, recognize that Mollick significantly expands the scope of Right-to-Know for the following three reasons:
- unless reversed on appeal, it signals OOR’s intention to use the Sunshine law to construe (i.e., interpret) RTK, a practice which will inevitably lead to the broadest possible application of Right-to-Know’s “presumption” of openness;
- sweeping, non-specific requests for documents (e-mail or otherwise) must be addressed, despite the burdensome, time-consuming nature of such requests; and
- e-mail communications between board members must be made available to the public if the subject matter concerns agency business, regardless of whether such messages are sent from or received at home computers or personally-owned, hand-held devices (e.g., BlackBerries, iPhones).
Conclusion
As part of the Right-to-Know planning process, I recommend that every municipal authority adopt specific policies concerning the use of e-mail messages. This will help minimize the personal use of the office computer, and it will also serve to remind employees and board members that e-mail communications are not necessarily private.
As we’ve discussed, certain (but not all) public records can be lawfully thrown away or destroyed, provided the purging is done pursuant to an official document destruction policy. Regardless of the purpose of your particular municipal authority, all such document destruction policies should be firmly based on the Municipal Records Act, and all such policies must address e-mail messages. For those municipal authorities that have not yet done so, I strongly recommend the adoption of an official document destruction policy (e-mail included) to facilitate the preservation of those records that must be maintained.
In the next issue of The Authority, I will offer tips on developing and implementing a meaningful records retention program. In the meantime, review the Committee’s new Manual with an eye to identifying any weaknesses in your current e-mail system. Otherwise, under Right-to-Know, you might find yourself responding to requests for e-mail communications, the number of and nature of which threatens to be both burdensome and embarrassing.
